Norm Pattis: When our interests trump our commitment to the truth, all is lost

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11:13 am EDT, Wednesday, May 25, 2016

Norm Pattis

Norm Pattis

Photo: Arnold Gold — NEW HAVEN Register

Photo: Arnold Gold — NEW HAVEN Register

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Norm Pattis

Norm Pattis

Photo: Arnold Gold — NEW HAVEN Register

Norm Pattis: When our interests trump our commitment to the truth, all is lost

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The law is not really all that complex; at least it shouldn’t be. It is merely a set of rules designed to help manage conflict, a means of policing the discordant mess we call civilization. It only becomes complex when dishonesty creeps in. So strike the first sentence of this paragraph: The law is complex because we are dishonest.

Why such a grim assessment?

Consider the case of Foster v. Chapman, decided by the U.S. Supreme Court this week. The case involved prosecutors found to have lied and a man sent to death row. It took the courts 29 years to get to the bottom of this mess.

Mr. Foster was convicted and sentenced to death for killing an elderly woman in Georgia. She was white; he is African American.

Prosecutors decided justice required he should die for this crime, so they sought the death penalty. Mr. Foster, or more likely his lawyers, as he was a man-child of 18 at the time of the killing, sought a jury of Mr. Foster’s peers to decide the case.

Race matters in the courts, although it is not supposed to. But studies reveal a black man accused of killing a white woman faces greater odds of conviction than a black man charged with killing another black man. Mr. Foster no doubt hoped for a few black faces on the jury.

I’ve stood next to young black men accused of murder in trial. Too often, each and every juror is white. One young man was outraged by what he saw. “What about a jury of my peers?” Connecticut’s jury pool has too few black faces.

Our law demands equal treatment of all, a jurisprudence sounding not in identity, but in integrity. Martin Luther King Jr. understood this when he dreamed of judging individuals not based on the color of their skin, but on the content of their character. His was a call for integrity, not identity, politics.

During jury selection, lawyers are free to select jurors the lawyers believe will be able to listen fairly and impartially to their case. Any juror who demonstrates an unwillingness to be fair and impartial is removed or, as lawyers say, struck for cause.

Lawyers are also free to play their hunches about potential jurors and to remove, or strike, jurors just because they don’t like them. These are called peremptory challenges and the law limits the number of these challenges.

No lawyer is supposed to use a peremptory challenge to strike a juror merely because of race or gender, the Supreme Court held long ago. Put another way, it is against the law for a lawyer to strike a juror on account of race.

How is this policed? Who can read the mind and intention of trial lawyers?

When a lawyer suspects his or her adversary of relying on race to exclude a juror, the lawyer challenges the strike. This is called a Batson challenge, taking its name after the Supreme Court decision banning the use of race as a factor in the use of peremptory challenges.

It’s as simple as standing up and saying: “Judge, I’m raising a Batson challenge to my adversary’s decision to strike the juror.” Raise such a challenge, and watch as a chill descends on the courtroom: We’ve yet to learn to have candid discussions about race; the topic makes folk uneasy.

A lawyer so challenged must then give an oral explanation about why he or she struck a juror. Judges typically are reluctant to second-guess these declarations, even though some of them are quite silly: “I didn’t like the way she looked at me,” “I don’t trust men with beards” and the like.

When a lawyer suspects the reasons someone offers for doing something are really just smokescreens, they call it a pretext. It’s a polite way of calling someone a liar, of accusing them of offering a false face to hide a lying heart. Proving pretext is hard.

In Mr. Foster’s case, the Court ruled 7-1 that the reasons offered by Georgia prosecutors for striking every black prospective juror were lies. It is a stunning decision; the high court almost never engages in reviewing mere matters of fact, saving itself for the high drama of grand principle.

But the record drove this decision.

When prosecutors declared that age was a factor in striking one black juror — she was 34 — the court noted the prosecution had not struck eight white jurors under the age of 36, one of whom was a mere 21 years of age. One black panelist was struck, prosecutors said, because she was divorced; yet three of four divorced white panelists were not struck. The reasons offered by the prosecutor made no sense; they were pretextual.

Liar, liar, prosecutorial pants on fire, the court effectively said.

Ironically, the lone dissent in this case came from the sole black justice, Clarence Thomas, who ruled that not enough deference was given to the trial court’s observation of the potential juror’s demeanor. As is so often the case, Thomas missed the mark by a country mile.

The court evaluated the prosecutor’s stated reasons for acting, not the trial court judge’s powers of observation. Seven justices concluded the prosecutor lied. Why is that so hard for Justice Thomas to understand?

Mr. Foster’s conviction was reversed, and Georgia will now have the option of trying him all over again, a difficult task after the passage of so many years.

The case illustrates the importance of integrity in the courts. Lawyers are advocates but also officers of the court; the rules of professional conduct require a lawyer to be candid to a judge. Georgia’s prosecutors failed in that regard. The U.S. Supreme Court called them out.

It is a jaw-dropper.

I often hear clients rage against the criminal justice system, expressing despair — the witnesses will just lie, they say. I feel naïve reminding them that the entire system depends on the integrity of the participants. When our interests trump our commitment to the truth, all is lost.

Just ask Mr. Foster.

Norm Pattis is a criminal defense and civil rights lawyer with an office in New Haven.